IRRITABLE COLON SYNDROME

Summary

The veteran, who served from June 1991 to June 1993, appeals the denial of an initial compensable rating for irritable bowel syndrome (IBS). The Board of Veterans' Appeals (Board) previously denied this claim in July 2022, but the Court of Appeals for Veterans Claims vacated that decision and remanded it for an adequate explanation of the term "frequent" in the diagnostic criteria. The Board reviewed VA examinations from March 2019, June 2020, and August 2020, along with VA medical treatment records and a January 2019 GI consultation. The March 2019 exam noted periodic abdominal pain and daily medication use, with no functional impairment in work ability. The June 2020 exam noted chronic abdominal pain with frequent exacerbations, intermittent diarrhea with certain foods, and daily Immodium use, but the examiner opined the Veteran did not have an IBS diagnosis. The August 2020 exam reported diarrhea twice weekly since 1992, controlled with Immodium, but no episodes of bowel disturbance or exacerbations. Medical records showed subjective denials of GI symptoms and resolution of diarrhea upon medication cessation. The Board found the Veteran's symptoms, described as occasional or intermittent, did not meet the criteria for moderate or frequent bowel disturbance. The Board concluded the symptoms more closely aligned with mild disturbances, warranting a noncompensable rating. Therefore, the claim for an initial compensable rating for IBS was denied.

Rationale

Symptoms described as occasional/intermittent, not frequent; Diarrhea resolved upon cessation of medication; Medical expert found symptoms did not cause functional impairment in work ability

Full Decision Text

Citation Nr: A23007118
Decision Date: 04/11/23	Archive Date: 04/11/23

DOCKET NO. 210325-146157
DATE: April 11, 2023

ORDER

Entitlement to an initial compensable rating for irritable bowel syndrome (IBS) is denied.

FINDING OF FACT

The Veteran's IBS is not manifested by frequent episodes of bowel disturbance with abdominal distress.

CONCLUSION OF LAW

The criteria for an initial compensable rating for IBS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.114, Diagnostic Code 7319.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1991 to June 1993. This matter is on appeal to the Board of Veterans' Appeals (Board) on direct review of a February 2021 rating decision. 

The matter was previously denied by the Board in July 2022. Pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims vacated the July 2022 decision in February 2023 and remanded the matter back to the Board. In the JMPR, the parties agreed that the Board in July 2022 failed to provide an adequate explanation of reasons and bases for why the Veteran's symptoms did not reflect a more than mild disability; specifically, the Board failed to define the term "frequent" in applying the diagnostic criteria to the evidence.

The Veteran's IBS is rated noncompensable effective September 25, 2018, under 38 C.F.R. § 4.71a, Diagnostic Codes 8873-7319.

Diagnostic Code 8873 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War veteran by analogy to one of the gastrointestinal diseases found in VA's Rating Schedule. The provisions of 38 C.F.R. § 4.114, Diagnostic Code 7319, pertain to irritable colon syndrome, and is the most analogous to the Veteran's symptoms. 

Under Diagnostic Code 7319, a noncompensable rating is assigned for mild disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is assigned for severe diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319.

The terms "mild," "moderate" and "severe" are not defined in the VA rating schedule. Therefore, the Board finds it appropriate to utilize definitions provided by a general dictionary. See Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003) (in the absence of an express definition, words are given their ordinary meaning). "Mild" is defined as "not violent, severe, or extreme; slight or gentle." Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english. "Moderate" is defined as "being within a middle range in size, amount, or degree; neither great nor little." Id. "Severe" is defined as "causing great pain, difficulty, damage, etc.; very serious." Id.

The ordinary definition of "frequent" is "acting or returning regularly or often." See Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/frequent. Thus, based on its ordinary definition, the Board understands the term "frequent" to generally refer to something that occurs regularly or often.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

Turning to the evidence, in a March 2019 VA examination, it was indicated that the Veteran experienced four or more recurring episodes of symptoms that are not severe, lasting less than one day. He experienced abdominal pain periodically, at least monthly. He reported daily medication for the condition. There were no incapacitating episodes, and the examiner opined that the condition did not cause functional impairment in his ability
 an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

Turning to the evidence, in a March 2019 VA examination, it was indicated that the Veteran experienced four or more recurring episodes of symptoms that are not severe, lasting less than one day. He experienced abdominal pain periodically, at least monthly. He reported daily medication for the condition. There were no incapacitating episodes, and the examiner opined that the condition did not cause functional impairment in his ability to work. However, a June 2020 addendum opinion explained that the March 2019 examination was "not sufficient to fully evaluate" the Veteran's IBS.

In a June 2020 VA examination report, chronic abdominal pain with frequent exacerbations is noted in the evidence section.  In the examination, the Veteran's current symptoms were reported as intermittent diarrhea with certain foods, and daily over the counter Immodium to control the diarrhea. He also experiences constipation approximately once monthly for three to four days. The examiner indicated that the Veteran experienced occasional episodes of bowel disturbance with abdominal distress. In terms of functional impact, the diarrhea would necessitate that the Veteran always be near a bathroom during the workday. The examiner opined, however, that the Veteran did not have a diagnosis of IBS. He was previously found to have medication-induced diarrhea as well as lactose intolerance, currently treated with lactose enzymes daily and lactose free milk. He continues to have diet-induced diarrhea. 

In an August 2020 VA examination, the Veteran reported diarrhea twice weekly since 1992. He continued to take Immodium daily. It was indicated that the Veteran did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the condition. In terms of functional impact, excessive walking is difficult for the Veteran due to the diarrhea. Similar to the previous examinations, no other complications were noted. 

The VA medical treatment records, which were reviewed and referenced extensively in the examination reports, show several subjective reports of no current gastrointestinal (GI) symptoms throughout the appeal period. In October 2018, the Veteran presented complaining of an upset stomach and diarrhea. He reported chronic diarrhea over three years with abdominal cramps with no nausea, vomiting, or weight loss. Possible diagnoses included IBS or lactose intolerance. Stool samples were negative for parasites or bacteria, and a CT of the abdomen and pelvis were unremarkable. He was given medication and referred to gastroenterology, and a colonoscopy was performed with essentially normal findings.

In a January 2019 GI consultation, the Veteran was referred for chronic diarrhea. At the time of the consultation, the Veteran reported that his diarrhea had resolved completely. According to the Veteran, the diarrhea began when he started medication for treatment of other disabilities. Once he stopped these medications, the diarrhea resolved. He also reported lactose intolerance since childhood, which he controlled with refraining from milk products. There were no other GI issues reported. 

Upon careful review of the evidence, the Board does not find that a compensable rating is warranted. The reported frequency of symptoms varies among the evidence from completely resolved in 2019 following cessation of medication, twice weekly since 1992, and occurring only with certain foods. The highest frequency reported by the Veteran is diarrhea twice weekly and abdominal pain or constipation at least once monthly; however, the medical expert determined that the diarrhea was diet-induced and intermittent, and that the Veteran suffered occasional episodes. The description of frequency of symptoms by a credible medical professional as "occasional" and "intermittent" indicates to the Board the symptoms are not returning regularly or often or, in other words, frequent. This finding is consistent with the VA medical treatment records, showing consistent subjective denials of GI symptoms, and indicating that the symptoms resolved upon cessation of medicine. 

Applying the evidence to the diagnostic criteria, the above findings do not reflect moderate or frequent bowel disturbance with abdominal distress. To the contrary, it appears from the record that the diarrhea occurs only with certain medication or foods, which indicates to the Board that the symptoms are occasional or infrequent in nature. Similarly, the Board finds that the report of abdominal distress or constipation at least once monthly does not constitute frequent as it does not appear to be occurring often. 

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?

While the Board acknowledges the Veteran's diagnosis and the existence of the accompanying symptomatology, the evidence of record shows his disability picture to be mild in nature. He has intermittent diarrhea upon consuming certain medications or food, and experiences occasional constipation or abdominal distress. The Board finds that these symptoms at this frequency more closely aligns with mild
 bowel disturbance with abdominal distress. To the contrary, it appears from the record that the diarrhea occurs only with certain medication or foods, which indicates to the Board that the symptoms are occasional or infrequent in nature. Similarly, the Board finds that the report of abdominal distress or constipation at least once monthly does not constitute frequent as it does not appear to be occurring often. 

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?

While the Board acknowledges the Veteran's diagnosis and the existence of the accompanying symptomatology, the evidence of record shows his disability picture to be mild in nature. He has intermittent diarrhea upon consuming certain medications or food, and experiences occasional constipation or abdominal distress. The Board finds that these symptoms at this frequency more closely aligns with mild disturbances of bowel function with occasional episodes of abdominal distress, constituting a noncompensable rating under the Diagnostic Code 7319.  The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102, is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The claim is denied.

 

R. COSTELLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Carroll, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.